54816 Federal Register / Vol. 71, No. 181 / Tuesday, September 19, 2006 / Notices 

construction starting on September 22, 

2006. This notice provides information 

regarding submitting comments and 

accessing affected dockets during this 

period. 

FOR FURTHER INFORMATION CONTACT: 

Minh-Hai Tran-Lam, Mail code 2822T, 

Office of Information Collection, 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460; telephone number: (202) 

566–1647; fax number: (202) 566–1639; 

e-mail address: Tran-Lam.MinhHai@epa.gov. 

SUPPLEMENTARY INFORMATION: Dockets, 

Electronic Dockets, and Information 

Centers serve as the repository for 

information related to particular Agency 

actions. Regulations.gov serves as EPA’s 

electronic public docket and on-line 

comment system. If you would like to 

submit an electronic comment or obtain 

docket materials for an EPA docket, 

please visit http://www.regulations.gov. 

As of September 22, 2006, the EPA 

Docket Center (EPA/DC) Public Reading 

Room will be temporarily inaccessible 

to the public until November 6, 2006, 

due to construction. Public access to 

docket materials will still be provided. 

We strongly encourage you to visit the 

EPA Docket website at http:// 

www.epa.gov/epahome/dockets.htm in 

order to receive the latest status 

concerning the Public Reading Room 

and public access to docket materials. 

If you wish to obtain materials from 

a docket in the EPA/DC, please go first 

to http://www.regulations.gov and 

obtain electronic copies. If the materials 

are listed in the docket index but the 

documents themselves are not available 

in regulations.gov, please call (202) 

566–1744 or e-mail the applicable 

Program Office Docket from the list 

provided below. 

EPA Docket Center operations will 

still continue during this period. In 

addition to electronic access through 

regulations.gov, public inspection of 

docket materials will be available by 

appointment during this period. 

Appointments may be made by calling 

(202) 566–1744 or by e-mailing the 

appropriate Docket Office listed below. 

If you wish to hand deliver comments 

during this period, you may drop them 

off between the hours of 8:30 a.m. and 

4:30 p.m. eastern standard time (e.s.t.), 

Monday through Friday, excluding 

Federal holidays at the EPA 

Headquarters, Room 6146F in the EPA 

West Building located at 1301 

Constitution Avenue, NW., Washington, 

DC. EPA visitors are required to show 

photographic identification and sign the 

EPA visitor log. After processing 

through the X-ray and magnetometer 

machines, visitors will be given an EPA/ 

DC badge that must be visible at all 

times, and be escorted to Room 6146F 

to drop off comments. 

• Office of Air and Radiation (OAR) 

Docket -- E-mail: a-and-rDocket@epa.gov. 

• Office of Enforcement and 

Compliance Assurance (OECA) Docket 

-- E-mail: docket.oeca@epa.gov. 

• Office of Environmental 

Information (OEI) Docket (includes 

Toxics Release Inventory (TRI) Docket) 

-- E-mail: oei.docket@epa.gov. 

• Office of Pollution Prevention and 

Toxics (OPPT) Docket -- E-mail: 

oppt.ncic@epa.gov. 

• Office of Research and 

Development (ORD) Docket -- E-mail: 

ord.docket@epa.gov. 

• Office of Solid Waste and 

Emergency Response (OSWER) 

-- Resource Conservation and 

Recovery Act (RCRA) Docket -- E-mail: 

rcra-docket@epa.gov. 

-- Superfund Docket -- E-mail: 

superfund.docket@epa.gov. 

-- Underground Storage Tanks (UST) 

Docket -- E-mail: rcra-docket@epa.gov. 

• Office of Water (OW) Docket -- Email: OW-Docket@epa.gov. 

If you have any other questions 

concerning the temporary closing of the 

EPA/DC Public Reading Room, you may 

call (202) 566–1744 between the hours 

of 8:30 a.m. and 4:30 p.m. e.s.t. 

List of Subjects 

Environmental protection. 

Dated: September 14, 2006. 

Mark Luttner, 

Director, Office of Information Collection, 

Office of Environmental Information. 

[FR Doc. 06–7781 Filed 9–15–06; 12:58 pm] 

BILLING CODE 6560–50–S 

COUNCIL ON ENVIRONMENTAL 

QUALITY 

The National Environmental Policy 

Act—Guidance on Categorical 

Exclusions 

AGENCY: Council on Environmental 

Quality. 

ACTION: Notice and request for 

comments. 

SUMMARY: The Council on 

Environmental Quality (CEQ) used an 

interagency work group to develop 

guidance to Federal agencies for 

establishing and for using categorical 

exclusions in meeting their 

responsibilities under the National 

Environmental Policy Act (NEPA). CEQ 

invites comments on the proposed 

guidance before issuing the final 

guidance to the heads of the Federal 

agencies. The proposed guidance, 

‘‘Establishing, Revising, and Using 

Categorical Exclusions under the 

National Environmental Policy Act’’, is 

reprinted below and is also available at 

http://www.NEPA.gov in the Current 

Developments section. 

DATES: Written comments should be 

submitted on or before October 27, 

2006. 

ADDRESSES: Electronic or facsimile 

comments on the proposed guidance are 

preferred because Federal offices 

experience intermittent mail delays 

from security screening. Electronic 

comments can be sent to NEPA 

Modernization (CE) at 

hgreczmiel@ceq.eop.gov. Written 

comments may be faxed to NEPA 

Modernization (CE) at (202) 456–0753. 

Written comments may also be 

submitted to NEPA Modernization (CE), 

Attn: Associate Director for NEPA 

Oversight, 722 Jackson Place NW., 

Washington DC 20503. 

FOR FURTHER INFORMATION CONTACT: 

Horst Greczmiel, 202–395–5750. 

SUPPLEMENTARY INFORMATION: The 

Council on Environmental Quality 

(CEQ) established a National 

Environmental Policy Act (NEPA) Task 

Force and is now implementing 

recommendations designed to 

modernize the implementation of NEPA 

and make the NEPA process more 

effective and efficient. Additional 

information is available on the task 

force Web site at http://ceq.eh.doe.gov/ 

ntf. 

The proposed guidance, 

‘‘Establishing, Revising, and Using 

Categorical Exclusions under the 

National Environmental Policy Act,’’

was developed to assist agencies with 

developing and using categorical 

exclusions for actions that do not have 

significant effects on the human 

environment and eliminate the need for 

unnecessary paperwork and effort under 

NEPA for categories of actions that 

normally do not warrant preparation of 

an environmental impact statement 

(EIS) or environmental assessment (EA). 

Developing and using appropriate 

categorical exclusions promotes the 

cost-effective use of agency NEPA 

related resources. CEQ requests public 

input and comments on the following 

proposed guidance: 

Establishing, Revising, and Using 

Categorical Exclusions under the 

National Environmental Policy Act. 

I. Introduction 

The following guidance is provided to 

assist Federal agencies in improving and 


pwalker on PRODPC60 with NOTICES
Federal Register / Vol. 71, No. 181 / Tuesday, September 19, 2006 / Notices 54817 

1Council on Environmental Quality, ‘‘The NEPA 

Task Force Report to the Council on Environmental 

Quality—Modernizing NEPA Implementation’’, 

(Sept. 2003), available at http:// 

www.ceq.eh.doe.gov/ntf. 

2This guidance applies to establishing new or 

revised categorical exclusions, and uses the term 

‘‘new’’ to include revisions of categorical exclusions 

that are more than administrative (e.g., revise to 

update outdated office or agency title) or editorial 

(e.g., correct spelling or typographical errors). 

3 40 CFR 1500.4(p) and 1500.5(k). 

4When legislative or administrative restructuring 

creates a new agency or realigns an existing agency, 

the agency may need to develop new NEPA 

procedures that include categorical exclusions. 

5 40 CFR 1508.7, 1508.8, and 1508.27. 

6 40 CFR 1508.4. 

7Council on Environmental Quality, ‘‘Guidance 

Regarding NEPA Regulations,’’ 48 FR 34263 (July 

28, 1983), available at http://www.nepa.gov/nepa/ 

regs/1983/1983guid.htm. 

8Agencies should be mindful of their obligations 

under the Information Quality Act to ensure the 

quality, objectivity, utility, and integrity of the 

information they use or disseminate as the basis of 

an agency decision to establish a new categorical 

exclusion. Section 515, Public Law 106–554; Office 

of Management and Budget Information Quality 

Guidelines, 67 FR 8452 (Feb. 22, 2002), available at 

http://www.whitehouse.gov/omb/inforeg/ 

infopoltech.html. Additional laws and regulations 

establish obligations that apply or may apply to the 

processes of establishing and applying categorical 

exclusions, such as the Federal Records Act; these 

are beyond the scope of this guidance. 

modernizing their administration of 

categorical exclusions under NEPA. The 

guidance recommends procedures and 

approaches for establishing and revising 

categorical exclusions; involving the 

public; documenting development, 

revision, and use of categorical 

exclusions; and periodically reviewing 

categorical exclusions. 

The CEQ regulations define 

categorical exclusion in 40 CFR 1508.4: 

• Categorical exclusion’’ means a category 

of actions which do not individually or 

cumulatively have a significant effect on the 

human environment and which have been 

found to have no such effect in procedures 

adopted by a Federal agency in 

implementation of these regulations 

(§ 1507.3) and for which, therefore, neither 

an environmental assessment nor an 

environmental impact statement is required. 

* * * Any procedures under this section 

shall provide for extraordinary circumstances 

in which a normally excluded action may 

have a significant environmental effect. 

CEQ established the CEQ NEPA Task 

Force to review NEPA implementation 

and identify opportunities to improve 

and modernize the NEPA process. To 

promote consistent categorical 

exclusion development and use, the 

CEQ NEPA Task Force recommended 

that CEQ issue clarifying guidance on 

categorical exclusions.1 This guidance is 

based on existing CEQ regulations and 

guidance, legal precedent, and agency 

NEPA experience. In keeping with CEQ 

regulations at 40 CFR 1507.1, the intent 

of this guidance is to allow agencies 

flexibility in implementing the 

procedures for categorical exclusions 

that are adapted to the requirements of 

other applicable laws. 

II. The Purpose of Establishing New 

Categorical Exclusions 2

The purpose of a categorical exclusion 

is to eliminate the need for unnecessary 

paperwork and effort under NEPA for 

categories of actions that normally do 

not warrant preparation of an 

environmental impact statement (EIS) or 

environmental assessment (EA).3

Developing appropriate categorical 

exclusions promotes the cost-effective 

use of agency NEPA related resources. 

Federal agency personnel should 

develop a categorical exclusion when 

they identify a class of actions without 

significant environmental impacts. A 

Federal agency should also consider 

developing categorical exclusions to 

respond to changes in mission or 

responsibilities as the agency gains 

experience with the new activities and 

their environmental consequences.4

Revision of an existing categorical 

exclusion can promote efficiency by 

clarifying the actions that are covered by 

an existing categorical exclusion. For 

example, a Federal agency may find that 

an existing categorical exclusion is not 

being used because the category of 

actions is too narrowly defined. In such 

cases, the agency should consider 

expanding the category of actions. 

Conversely, if an agency finds that an 

existing categorical exclusion includes 

actions that are regularly found to 

require additional NEPA analysis, then 

the agency should revise the categorical 

exclusion to limit the category of actions 

included. 

III. Substantiating a New Categorical 

Exclusion 

A key issue confronting Federal 

agencies is how to evaluate whether a 

proposed categorical exclusion is 

appropriate and how to support the 

determination that it describes a 

category of actions that do not 

individually or cumulatively have a 

significant effect on the human 

environment.5 The information that 

supports establishing a categorical 

exclusion should demonstrate how the 

agency determined that the proposed 

categorical exclusion does not typically 

result in significant environmental 

effects and set forth the methodology 

and any criteria used to define the 

proposed category of actions. 

A. The Elements of a Categorical 

Exclusion 

The text of a proposed categorical 

exclusion should clearly define the 

category of actions as well as any 

physical or environmental factors that 

would constrain its use. An example of 

a physical constraint is a limit on the 

extent of the action (e.g., miles). 

Examples of environmental constraints 

are limits on where and under what 

conditions the categorical exclusion 

may be used (e.g., particular seasons in 

habitat areas). Federal agencies should 

also consider the opportunity to develop 

categorical exclusions that are limited in 

their application to regions or areas of 

the country where it can demonstrate 

that the actions do not present 

significant impacts based on the 

similarity of environmental settings. 

When developing a categorical 

exclusion, the Federal agency must 

make certain that the proposed category 

clearly describes all the actions that 

should be included. Categorical 

exclusions should not be established in 

a disaggregated or segmented format 

simply to circumvent the evaluation of 

environmental effects required for 

NEPA compliance through an EA or EIS. 

A Federal agency’s NEPA procedures 

for categorical exclusions must provide 

for extraordinary circumstances.6

Extraordinary circumstances function to 

identify the atypical situation or 

environmental setting where an 

otherwise excluded action merits 

further analysis and documentation in 

an EA or an EIS. For many agencies, 

their existing extraordinary 

circumstances provisions (often 

presented as a list) will suffice. 

However, an agency may develop 

extraordinary circumstances that 

specifically relate to the new categorical 

exclusion and propose them in 

conjunction with the categorical 

exclusion. 

B. Gathering Information To 

Substantiate a Categorical Exclusion 

CEQ guidance generally addresses 

establishing categorical exclusions. 

Section 1507 of the CEQ regulations directs 

Federal agencies when establishing 

implementing procedures to identify those 

actions which experience has indicated will 

not have a significant environmental effect 

and to categorically exclude them * * * 7

Various sources of information 

relevant to the action and its 

environmental effects may be used to 

substantiate a categorical exclusion 

including but not limited to evaluation 

of implemented actions, impact 

demonstration projects, information 

from professional staff and expert 

opinion or scientific analyses, and 

others’ experiences (benchmarking).8


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54818 Federal Register / Vol. 71, No. 181 / Tuesday, September 19, 2006 / Notices 

9An EMS provides a systematic framework for a 

Federal agency to monitor and continually improve 

its environmental performance through audits, 

evaluation of legal and other requirements, and 

management reviews. 

Sources with substantial similarities 

to the proposed categorical exclusion 

will prove to be the most useful. 

Substantiating information should 

account for similarities and differences 

relative to the proposed categorical 

exclusion in terms of the scope of 

actions, methods of implementation, 

and environmental settings. The Federal 

agency should maintain an 

administrative record that includes all 

sources of information used and related 

findings. The agency should also 

summarize that information and the 

related findings in the Federal Register 

publication of the proposed categorical 

exclusion. 

1. Evaluating an Agency’s Implemented 

Actions 

Evaluation of implemented actions, as 

used in this guidance, refers to 

monitoring and evaluating the 

environmental effects of the Federal 

agency’s completed or ongoing actions. 

The benefit of evaluating an agency’s 

own actions is that the implementation 

and operating procedures are in place 

and well known. The evaluation should 

include data collected before the 

proposed categorical exclusion is 

finalized. Collaboratively monitoring 

and evaluating implemented actions 

with non-federal entities can provide 

useful information for substantiating a 

categorical exclusion. 

For a category of actions that the 

agency analyzed in EAs that supported 

Findings of No Significant Impact 

(FONSIs), evaluations can validate the 

predicted environmental effects, and 

provide strong support for a proposed 

categorical exclusion. Evaluation of 

implemented actions analyzed in an EIS 

may also be used to substantiate a 

categorical exclusion for activities. An 

EIS can be used when the action is 

minor, subordinate to and not 

dependent upon other actions. An EIS 

can also be used when it analyzes both 

a large management action and a 

smaller, independent action. 

Finally, Federal agencies with an 

Environmental Management System 

(EMS) may be able to use data generated 

through their EMS.9 An EMS may 

provide a record of environmental 

performance and help identify actions 

that should be included in a proposed 

categorical exclusion or proposed 

extraordinary circumstances. 

2. Impact Demonstration Projects 

As used in this guidance, the term 

impact demonstration project describes 

a project that includes the NEPA 

analysis of a proposed action (for which 

the agency does not have extensive 

experience), implementation of the 

action, and evaluation of the 

environmental effects of the action. The 

NEPA documentation prepared for the 

demonstration project should explain 

that one of the purposes of the NEPA 

process is to generate analyses for 

substantiating a proposed categorical 

exclusion. 

In designing an impact demonstration 

project it is particularly important that 

the action being evaluated accurately 

reflect the category of actions described 

in the proposed categorical exclusion 

and that the action is implemented 

under similar operational and 

environmental conditions as in the 

proposed categorical exclusion. Several 

projects may be useful when 

environmental conditions vary in 

different regions where the categorical 

exclusion would be used. 

3. Professional Staff and Expert 

Opinions, and Scientific Analyses 

A Federal agency may use their 

professional staff and outside expert 

opinions as a valid source of 

information to substantiate a categorical 

exclusion. Those individuals should 

have special knowledge, training, 

experience, or understanding relevant to 

implementation of the actions described 

in the proposed categorical exclusion 

and the environmental effects of the 

action. The agency record should 

include such individuals’ credentials 

(e.g., education, training, certifications, 

years of related experience). 

The use of scientific analyses need 

not be limited to peer-reviewed findings 

and may also include professional 

opinions, reports, and research findings. 

However, because the reliability of 

scientific information varies according 

to its source and the rigor with which 

it was developed, the Federal agency 

remains responsible for determining 

whether the information in question 

reflects accepted knowledge or findings 

and addresses the effects of the actions 

included in the proposed categorical 

exclusion. 

4. Benchmarking Public and Private 

Entities’ Experiences 

As used in this guidance, the term 

benchmarking means using information 

and records from other private and 

public entities’ experience with similar 

actions. When evaluating whether it is 

appropriate to rely on others’

experience, it will be necessary to 

demonstrate that the categorically 

excluded actions and their 

environmental effects are comparable to 

the category of actions in the proposed 

categorical exclusion. Benchmarking 

should consider the similarities and 

differences in: (1) Methods of 

implementing the actions; (2) 

characteristics of the actions; (3) 

frequency of the actions; (4) applicable 

standard operating procedures or 

implementing guidance; and (5) 

environmental settings in which the 

actions take place. Although an agency 

cannot simply use another agency’s 

categorical exclusion for a proposed 

action, a Federal agency may find it 

useful to consider another Federal 

agency’s experience and supporting 

information involving categorically 

excluded actions. 

C. Refining a Proposed New Categorical 

Exclusion 

If a proposed categorical exclusion is 

found to have a potentially significant 

effect, the Federal agency should either 

drop consideration of the categorical 

exclusion or consider refining it. 

Examples include: limiting or removing 

actions included in the proposed 

categorical exclusion; adding text that 

places additional constraints on the use 

of the categorical exclusion; or refining 

the applicable extraordinary 

circumstances. 

Federal agencies may also consider 

limiting the geographic applicability of 

the categorical exclusion. For example, 

if the category of actions is typically 

without significant effects in the 

northeastern United States or in a 

particular set of watersheds, it may be 

appropriate to establish a regional or 

spatially-based categorical exclusion. 

Furthermore, when developing a new 

categorical exclusion, it may be helpful 

or necessary to identify extraordinary 

circumstances specifically tailored for 

that categorical exclusion. Such 

tailoring would facilitate identifying 

atypical circumstances and further 

ensure that the use of the categorical 

exclusion would typically not result in 

individual or cumulative significant 

environmental effects. 

IV. Procedures for Establishing a New 

Categorical Exclusion 

The process of establishing or revising 

an agency’s NEPA procedures, as 

distinguished from explanatory 

guidance, is found in 40 CFR 1507.3(a). 

Each agency shall consult with the Council 

while developing its procedures and before 

publishing them in the Federal Register for 

comment. Agencies with similar procedures 

should consult with each other and the 


pwalker on PRODPC60 with NOTICES
Federal Register / Vol. 71, No. 181 / Tuesday, September 19, 2006 / Notices 54819 

10 40 CFR 1507.3. 

11 40 CFR 1507.3 and 1506.6(b)(2). 

12NEPA and the CEQ regulations do not require 

agency NEPA implementing procedures to be 

promulgated as regulations through formal 

rulemaking; therefore the rulemaking process is not 

described herein. Agencies that use rulemaking 

should ensure they comply with all appropriate 

requirements. 

13Heartwood, Inc. v. U.S. Forest Service, 73 F. 

Supp. 2d 962, 972–73 (S.D. Ill. 1999), aff’d, 230 

F.3d 947, 954–56 (7th Cir. 2000). 

14 ‘‘Agencies shall: (a) Make diligent efforts to 

involve the public in preparing and implementing 

their NEPA procedures.’’ 40 CFR 1506.6. 

15Ready access to all supporting information may 

minimize the need for members of the public to 

depend on Freedom of Information Act requests 

and enhance the NEPA goals of outreach and 

disclosure. 

16Council on Environmental Quality, ‘‘Guidance 

Regarding NEPA Regulations’’, 48 FR 34263 (July 

28, 1983), available at http://www.nepa.gov/nepa/ 

regs/1983/1983guid.htm. 

Council to coordinate their procedures, 

especially for programs requesting similar 

information from applicants. The procedures 

shall be adopted only after an opportunity for 

public review and after review by the 

Council for conformity with the Act and 

these regulations [40 CFR parts 1500—1508]. 

The Council shall complete its review within 

30 days. Once in effect they shall be filed 

with the Council and made readily available 

to the public. Agencies are encouraged to 

publish explanatory guidance for these 

regulations and their own procedures. 

Agencies shall continue to review their 

policies and procedures and in consultation 

with the Council to revise them as necessary 

to ensure full compliance with the purposes 

and provisions of the Act. 

Federal agencies are encouraged to 

involve CEQ early in the process to take 

advantage of CEQ expertise and assist in 

coordinating with other agencies to 

make the process as efficient as 

possible. Federal agencies should 

consult with CEQ on both the proposed 

categorical exclusion and the final 

categorical exclusion.10

Any proposed categorical exclusion 

must be made available for public 

review and comment. At a minimum, 

the CEQ regulations require Federal 

agencies to publish the proposed 

categorical exclusion in the Federal 

Register and provide a period during 

which the public may submit comments 

on the proposal.11 Federal agencies are 

encouraged to maintain a file of the 

comments and responses. To maximize 

the value of input from interested 

parties and assist them in focusing their 

comments, the agency should make 

information supporting the categorical 

exclusion available to the public. 

Following the public comment 

period, the Federal agency should 

consult with CEQ and review the nature 

of any substantive comments received 

and how they were addressed. For 

consultation to successfully conclude, 

CEQ must provide a written statement 

that the final proposed categorical 

exclusion was developed in conformity 

with NEPA and the CEQ regulations. 

CEQ must complete its review within 30 

days of receiving the final text of the 

proposed categorical exclusion. 

The final categorical exclusion must 

then be published in the Federal 

Register. This publication can serve to 

satisfy the requirements that the agency 

file the categorical exclusion with CEQ, 

and make it readily available to the 

public. 

The following recommended and 

required steps establish a categorical 

exclusion as part of the agency NEPA 

procedures, regardless of the format the 

agency uses for its NEPA procedures:12

1. Draft proposed categorical 

exclusion based on experience indicated 

in supporting information. 

2. Consult with CEQ on draft of 

proposed categorical exclusion. 

3. Consult other Federal agencies with 

similar procedures, jurisdiction by law, 

or special expertise regarding the 

category of activities and their effects. 

4. Publish notice of proposed 

categorical exclusion in the Federal 

Register for public review and 

comment. 

5. Consider public comments in 

developing final categorical exclusion. 

6. Consult with CEQ on final 

categorical exclusion to obtain 

determination of conformity with NEPA 

and the CEQ regulations. 

7. Publish final categorical exclusion 

in the Federal Register. 

8. File final categorical exclusion with 

CEQ. 

9. Make final categorical exclusion 

readily available to the public. 

V. Public Involvement in Establishing a 

Categorical Exclusion 

A NEPA process is not required for 

establishing or revising agency NEPA 

procedures.13 However, engaging the 

public in the environmental aspects of 

Federal decisionmaking is a key aspect 

of NEPA and an opportunity for public 

involvement beyond publication in the 

Federal Register for review and 

comment should be considered.14 The 

Federal Register notice requesting 

comment on the proposed categorical 

exclusion should: 

• Describe the proposed categorical 

exclusion and provide the proposed 

text. 

• Summarize the agency rationale 

and history for its development and 

advise the public on how to access the 

agency’s supporting information and, 

whenever practicable, include a link to 

a Web site containing the supporting 

information.15

• Define all applicable terms. 

• Summarize how the proposed 

categorical exclusion fits into the 

existing agency NEPA implementation 

process. 

• Explain how extraordinary 

circumstances, and possibly other 

factors such as connected actions and 

cumulative impacts, may limit the use 

of the categorical exclusion. 

• Explain available avenues for 

public comment and feedback on the 

proposed categorical exclusion. 

When establishing a categorical 

exclusion the Federal agency should 

tailor the type and length of the public 

involvement to the nature of the 

proposed category of actions and its 

perceived environmental effects. CEQ 

encourages Federal agencies to engage 

interested parties such as public interest 

groups, Federal NEPA contacts at other 

agencies, consultants, and Tribal, State, 

and local government agencies to share 

relevant data, information and concerns. 

The methods noted in 40 CFR 1506.6 

and other public involvement 

techniques such as focus groups, 

meetings, e-mail exchanges, conference 

calls, and Web-based forums can be 

used to stimulate public involvement. 

VI. Using an Established Categorical 

Exclusion 

The CEQ regulations do not address 

documentation or public involvement 

for using a categorical exclusion. CEQ 

guidance states: 

‘‘(T)he Council believes that sufficient 

information will usually be available during 

the course of normal project development to 

determine the need for an EIS and further 

that the agency’s administrative record will 

clearly document the basis for its decision. 

Accordingly, the Council strongly 

discourages procedures that would require 

the preparation of additional paperwork to 

document that an activity has been 

categorically excluded.16

A. Documentation 

Each Federal agency should decide if 

a categorical exclusion determination 

warrants preparing additional 

paperwork and, if so, how much 

documentation is appropriate. 

Documentation is an important 

component of any adequate 

administrative record. The extent of the 

documentation should be related to the 

type of action involved, the potential for 

extraordinary circumstances, and 

compliance with other laws, 

regulations, and policies. 

A Federal agency may decide to create 

a concise record for an action where 


pwalker on PRODPC60 with NOTICES
54820 Federal Register / Vol. 71, No. 181 / Tuesday, September 19, 2006 / Notices 

17Council on Environmental Quality, ‘‘The NEPA 

Task Force Report to the Council on Environmental 

Quality—Modernizing NEPA Implementation,’’ p. 

58 (Sept. 2003), available at http:// 

www.ceq.eh.doe.gov/ntf. 

18The agency determination that an action is 

categorically excluded may be challenged under the 

Administrative Procedures Act. 5 U.S.C. 702 et seq. 

19 40 CFR 1506.6. 

20Council on Environmental Quality, ‘‘The NEPA 

Task Force Report to the Council on Environmental 

Quality—Modernizing NEPA Implementation’’, p. 

63, (Sept. 2003), available at http:// 

www.ceq.eh.doe.gov/ntf. 

21Council on Environmental Quality, ‘‘The NEPA 

Task Force Report to the Council on Environmental 

Quality—Modernizing NEPA Implementation’’, p. 

63, (Sept. 2003), available at http:// 

www.ceq.eh.doe.gov/ntf. 

there are reasonable questions regarding 

the existence of extraordinary 

circumstances that may create the 

potential for the use of the categorical 

exclusion to be questioned. If a record 

is prepared, it should cite the 

categorical exclusion used and show 

that the agency considered: (1) How the 

action fits within the class of actions 

described in the categorical exclusion, 

and (2) whether there are any 

extraordinary circumstances that would 

preclude the project or proposed action 

from qualifying as a categorically 

excluded action. 

Some courts have required 

documentation to demonstrate that a 

Federal agency has considered 

extraordinary circumstances in cases 

where the absence of extraordinary 

circumstances is not obvious.17

Documenting the use of a categorical 

exclusion facilitates judicial review 

under the Administrative Procedure 

Act, which requires review to be based 

upon a pre-existing record.18

Using a categorical exclusion does not 

absolve Federal agencies from 

complying with the requirements of 

other laws, regulations, and policies. 

Documentation created for individual 

actions or projects may be necessary to 

comply with such requirements. When 

that is the case, all resource analyses 

and the results of any consultations or 

coordination (e.g., under Endangered 

Species Act or National Historic 

Preservation Act), should be included or 

incorporated by reference in the 

administrative record for the action. 

B. Public Involvement 

Most Federal agencies do not 

routinely notify the public when they 

use a categorical exclusion to meet their 

NEPA responsibilities. In situations 

where there is a high public interest in 

an action that will be categorically 

excluded, CEQ encourages Federal 

agencies to involve the public in some 

manner (e.g., notification, scoping), 

particularly when the public can assist 

the agency in determining whether a 

proposal involves extraordinary 

circumstances or cumulative impacts. 

VII. Periodic Review of Categorical 

Exclusions 

The CEQ regulations direct Federal 

agencies to periodically review their 

policies and procedures; however, they 

do not describe how such a review 

should be conducted.19 CEQ encourages 

Federal agencies to develop procedures 

for identifying and revising categorical 

exclusions that no longer effectively 

reflect current environmental 

circumstances or where agency 

procedures, programs, or missions have 

changed. 

A Federal agency can keep a record of 

its experience by tracking information 

provided by agency field offices.20 In 

such cases, a Federal agency review of 

a categorical exclusion could consist of 

e-mails, memos, and letters from field 

offices that include observations of the 

effects of implemented actions, and 

public input on actions and their 

environmental effects. 

Another approach to reviewing 

existing categorical exclusions is 

through a program review. Program 

reviews can occur at various levels (e.g., 

field office, division office, headquarters 

office) and on various scales (e.g., 

geographic location, project type, or as 

a result of an interagency agreement). 

While a Federal agency may choose to 

initiate a program review that 

specifically focuses on categorical 

exclusions, it is possible that program 

reviews with a different focus may also 

be able to provide documentation of 

experience relevant to a categorical 

exclusion. 

There are many good reasons why 

Federal agencies should perform 

categorical exclusion reviews. They can 

serve as the impetus for expanding the 

categorical exclusion to include actions 

not previously categorically excluded. 

They may help identify additional 

extraordinary circumstances. 

Categorical exclusion reviews may also 

help a Federal agency consider the 

appropriate documentation when using 

certain categorical exclusions. 

Finally, the rationale and supporting 

information for establishing or 

documenting experience with using a 

categorical exclusion can be lost when 

there are inadequate systems and 

procedures for recording, retrieving, and 

preserving agency documents and 

administrative records. Therefore, 

Federal agencies may benefit from a 

review of current practices used for 

maintaining and preserving such 

records. Measures to ensure future 

availability may include, but not be 

limited to, redundant storage systems 

(e.g., multiple drives, paper copies), and 

improvements in the agency electronic 

and hard copy filing and retrieval 

systems.21

Public comments are requested on or 

before October 27, 2006. 

Dated: September 14, 2006. 

James L. Connaughton, 

Chairman, Council on Environmental 

Quality. 

[FR Doc. 06–7756 Filed 9–18–06; 8:45 am] 

BILLING CODE 3125–W6–P 

FEDERAL RESERVE SYSTEM 

Formations of, Acquisitions by, and 

Mergers of Bank Holding Companies 

The companies listed in this notice 

have applied to the Board for approval, 

pursuant to the Bank Holding Company 

Act of 1956 (12 U.S.C. 1841 et seq.) 

(BHC Act), Regulation Y (12 CFR Part 

225), and all other applicable statutes 

and regulations to become a bank 

holding company and/or to acquire the 

assets or the ownership of, control of, or 

the power to vote shares of a bank or 

bank holding company and all of the 

banks and nonbanking companies 

owned by the bank holding company, 

including the companies listed below. 

The applications listed below, as well 

as other related filings required by the 

Board, are available for immediate 

inspection at the Federal Reserve Bank 

indicated. The application also will be 

available for inspection at the offices of 

the Board of Governors. Interested 

persons may express their views in 

writing on the standards enumerated in 

the BHC Act (12 U.S.C. 1842(c)). If the 

proposal also involves the acquisition of 

a nonbanking company, the review also 

includes whether the acquisition of the 

nonbanking company complies with the 

standards in section 4 of the BHC Act 

(12 U.S.C. 1843). Unless otherwise 

noted, nonbanking activities will be 

conducted throughout the United States. 

Additional information on all bank 

holding companies may be obtained 

from the National Information Center 

website at www.ffiec.gov/nic/. 

Unless otherwise noted, comments 

regarding each of these applications 

must be received at the Reserve Bank 

indicated or the offices of the Board of 

Governors not later than October 13, 

2006. 

A. Federal Reserve Bank of 

Richmond (A. Linwood Gill, III, Vice 

President) 701 East Byrd Street, 

Richmond, Virginia 23261-4528: 


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